| Accepting Substitutions
for Specified Materials
by Hal G. Block
The author is a graduate architect and attorney with Hart,
King & Coldren, Santa Ana, CA. For more than 12 years,
his practice has specialized exclusively in the counseling
and representation of design professionals.
Perhaps there are no two words that impact costs and the
design intent more frequently than the phrase "or equal."
Much has been written, mostly con, regarding "or equal"
substitutions. On one hand, you do not want to discourage
innovation or eliminate competition. On one hand, you do not
want a job impacted or your own costs significantly increased
processing inappropriate or numerous substitution requests.
How can your costs and exposures to claims be minimized?
Some solutions are obvious:
- Recognize that, in the real world, substitution requests
are inevitable. Therefore, develop proprietary specifications
that clearly define performance characteristics and other
requirements without drafting an illusory, tailor-made specification
that only allows one manufacturer to comply.
- Include as part of the specification a "Substitute
Request Form" that must accompany any proposed "or
equal" substitution. This form should fully set forth
the criteria that will be used in reviewing acceptance of
a substitution.
- Enforce the specifications or general condition requirements
pertaining to substitutions, as well as all other provisions.
You may either directly waive any substitution provision
by not enforcing it, or may indirectly waive it by not enforcing
other contractual requirements.
- Be responsive to requests received. Courts and arbitrators
do not look kindly upon responses or rejections that do
not address the issue in a timely or professional manner.
Arbitrary rejection will buy you a claim.
Make sure that a specified item is reasonably available
or that it is still being manufactured. Specifications must
be reviewed and periodically updated.
Some not so obvious solutions:
- Do not allow shop drawings to become a quasi-substitution
form. Shop drawings that attempt to substitute for specified
items should be rejected and returned as not in compliance
with the contract documents. Any attempts to comment on
shop drawings on a "revise and submit" basis expose
the design professional to claims of partial acceptance
of the substitution, or, if part of a system, acceptance
of the system.
- Draft and coordinate your contract and the general or
supplemental general conditions in a manner that compensates
the design professional and back charges the contractor
for services related to the review of proposed substitutions.
This will discourage inappropriate substitution requests.
- Raise the issue of substitutions in a pre-construction
charrette of the construction documents between the design
professional, owners, contractors and major subcontractors.
This serves many purposes, including the identification
of items that may result in substitutions or items that
due to long lead times or limited availability could impact
the project schedule unless substitutions or alternate solutions
are considered. This charrette is the major loss avoidance
tool you can utilize to minimize the potential for delay
claims and to identify, at an early stage, the likelihood
of substitutions being requested.
These are general suggestions. Specific circumstances may
require different solutions. Consult your attorney.
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